VIDEO SURVEILLANCE EVIDENCE INADMISSIBLE

September 25, 2006

A recent arbitration award declaring video surveillance evidence inadmissible because it was obtained in violation of Alberta’s Personal Information Protection Act is important for B.C. private sector employers because they are governed by similar legislation.

Concerned about time fraud, the employer used a security camera to monitor an employee’s break practices without his consent. His employment was terminated when the video showed he was taking extended breaks. The termination was grieved and referred to arbitration, where the union objected to the admissibility of the surveillance evidence on the ground that it had been obtained in violation of the Act. The employer argued that consent was not required under the Act for two reasons: because the employer was collecting “personal employee information” and because the collection of personal information was reasonable for the purpose of the investigation.

The arbitrator disagreed. He found that the video surveillance did not fall within the definition of “personal employee information” because it contained personal information that was not relevant to the employment relationship, like how the grievor walked, what he wore and whether he blew his nose or scratched his head, in addition to information related to employment. Further, the collection of this personal information was not reasonable for the purposes of the investigation because the employer failed to discuss the problem with the grievor and failed to consider less intrusive investigative measures before resorting to video surveillance.

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